The German utility model is celebrating an anniversary: for 125 years, this second technical property right has had a firm place alongside the patent in the mosaic of industrial property rights. This is the occasion for two articles on the subject. Firstly, the background to the creation and development of the utility model will be examined.
The first Utility Model Act of 1 June 1891 stipulated in § 1: „Models of working appliances or articles of daily use or of parts thereof shall be protected as utility models in accordance with this Act insofar as they are intended to serve the purpose of work and use by means of a new design, arrangement or device“.
The Utility Model Act offered for the first time a Legal basis for utility model protection in the German Empire, where the need for the protection of intellectual property was recognised in the course of the economic upswing due to advancing industrialisation. Commercially applicable inventions were to be protected by a „German Imperial Utility Model“. One of the legislators' aims was also to protect the Patent Office from the examination of inventions to relieve, which were received by the Patent Office in increasing numbers. The Utility Model Act, which came into force on 1 October 1891, quickly made the new IP right popular: the weekly „Mittheilungen aus dem Kaiserlichen Patentamt“ published the first utility models registered in the roll just two weeks later. The issue of the „Mittheilungen“ of 10 November 1891 showed for the first time statistics on the 916 applications filed in the previous month.
The „most popular“ class was class 34 „Domestic appliances“ with 99 registrations, followed by Class 3 „Clothing industry“ (57) and Class 33 „Hand and travelling utensils“ and Class 44 „Short goods“ (52 each). However, this statistical survey also provides information about the regional origin of the applicants at that time, as the German Patent and Trade Mark Office informs in a current announcement on the occasion of the anniversary. Of the 916 applications filed in the first month, half (456) came from the Kingdom of Prussia, of which one in three came from Berlin alone (153). The other half of the registrations were distributed among the other German states, above all the Kingdoms of Saxony (158) and Bavaria (94). The Imperial Patent Office received 50 applications from abroad, which corresponds to a share of 6 per cent. In comparison: 14,277 utility model applications were filed with the German Patent and Trade Mark Office in 2015, 28 per cent of which came from abroad. The German states with the highest number of applications were North Rhine-Westphalia (26 per cent), Bavaria (23 per cent) and Baden-Württemberg (18 per cent).
Unexamined property right with limited term of protection
The utility model was and still is an unexamined property right at that time with a maximum term of protection of six years from application, while it ten years today are. With the new IP right, the legislator was primarily targeting small and medium-sized traders who wanted to protect their inventions quickly and inexpensively. The term „model“ in the legal text of 1891 was associated with the requirement of a physical embodiment: An object capable of being protected by a utility model therefore had to be spatially determinable. The 1891 Act was reformed in 1936. The new legal regulations stipulated that the utility model application had to contain a claim to protection and a drawing instead of a „reproduction or illustration of the model“. However, it was still possible to submit models that were kept in a special model store at the patent office.
Even with the entry into force of a New version on 1 January 1987 the requirement of the spatial form continued to exist and was only abandoned in the course of the adoption of the Product Piracy Act of 7 March 1990, when Section 1 (1) GebrMG also received its new version. Since then, utility model protection has been possible for all technical inventions with the exception of pure process inventions.
[infotext icon]The next article will deal with the unique advantages of the German utility model system, especially in an international comparison. The strategic options arising from these advantages for the IP right holder are often not yet given the attention they deserve in practice[/infotext].Author: Hans-Peter Gottfried (Patent Attorney, Dresden)
